Director of Public Prosecutions v Magok

[2018] VCC 1296

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00467

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAJUR MAGOK

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 August 2018
CASE MAY BE CITED AS:	DPP v Magok
MEDIUM NEUTRAL CITATION:	[2018] VCC 1296

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer
For the Accused	Ms P. Smith

HIS HONOUR:

1Majur Magok, you are to be sentenced for one charge of armed robbery.  The maximum sentence is 25 years' imprisonment. 

2You pleaded guilty before this court on 27 April 2018.  When interviewed by police on 4 December 2017, two days after the offending, you admitted the offence of armed robbery.  You stated that you did not know that your co-offender, Barnabas Dhal, was carrying weapon until he produced it during the robbery.  I shall return to this.      Committal went by hand-up brief on 2 March 2018, after which you entered a plea of guilty.  The matter was listed for plea in this court. 

3You receive the benefit of your plea of guilty and the level of cooperation I have described,  both from an early stage.  You have facilitated the interest of justice and I accept that you are remorseful.

4At your plea hearing, which ran on 13 July and 9 August, Mr Plummer, for the Crown, tendered a written Crown opening,  the victim impact statement of Shaocun Tang and CCTV footage of the offence.  Ms Smith, for you, tendered the forensic psychological report of Gina Cidoni, dated 26 April 2018, the letter of your mother - I apologise for any mispronunciation - Njiananut Mamur Magok, dated 9 July 2018, and a Victorian Correction's document termed "Sentence remand indent", recording your placement in custody.  Ms Smith provided an outline of plea submissions and an associated chronology of the proceeding. 

5The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary of the general circumstances may be short.  At the time of offending you were aged 18.  Your co-offender, Gary Scown, who was sentenced by me on 9 August, was aged 29 at the time of the offence. 

6At about 1.15 pm of 2 December 2017, you two and Barnabas Dhal entered the IGA supermarket at Talintyre Road in Sunshine West.  CCTV footage presented it as a small, somewhat compact style of such a store.  You were wearing some forms of disguise.  Shaocun Tang was working at the store register.  There were only two other employees on shift.

7Dhal jumped the counter, quickly followed by you and Scown.  During this he, Dhal, produced an imitation handgun from under his clothing. As I noted during the plea hearing,  the area behind the counter was a very small space.  Presenting the gun, Dhal demanded that Shaocun Tang opened the till.  Dhal dismantled and took the register.  You and Scown went to where cigarettes were held and stole a quantity of those.  It all happened quickly and it might be said, on my interpretation of the footage, with apparent efficiency.  The three of you left. 

8In his police statement, and also reflected in the Crown opening, Shaocun Tang states that the gun was pointed at and close to his head; this is not apparent in the tendered footage.  The other two staff on shift, Kevin He and Jun Goh observed some of what happened, particularly Kevin He.  So did a customer, Bianca Herrick; she hid in the store fridge.  Approximately $2000 in cash was stolen.  You admitted in interview to stealing 30 to 40 packets of cigarettes. 

9The victim impact statement of Shaocun Tang is short and can be quoted in full, "Since the robbery, I have been having bad nightmares, which cause me to constantly wake up, so I have a restless night and don't get enough sleep.  Then during the day I feel very tired and can't concentrate on my duties at work, which has caused my work performance to depreciate and causing me to make more mistakes.  I feel very nervous and anxious when serving new customers.  I worry that something like that will happen again but worse next time.  I have lost interest in my hobbies that I used to enjoy, like going for a daily walk or reading a book.  I can't concentrate anymore and it's causing me to feel depressed."  Under the heading "Financial impact of the crime", he states, "After the robbery, I asked for one week annual leave to get a rest.  I saw my GP several times, bought medicines to help sleep and manage anxiety.  I also had to ask for leave several times to talk to a psychologist."  That Shaocun was very frightened is clearly shown to me in the CCTV footage.  Others were also affected.  There has been significant victim impact, which must be taken into account in my sentence of you. 

10I repeat my findings on your knowledge of Dhal's weapon as put in my sentence of Scown and equally applicable to you, "As I said earlier, you stated to police and maintain no knowledge of Dhal's handgun until he produced it inside the IGA store.  The Crown does not accept this and the issue was a focus at the plea hearing.  No evidence was led beyond the depositional material which, of course, includes the CCTV footage. 

11"The Crown has conceded under the principles stated in R v Storey and like cases that it carries the burden to show beyond reasonable doubt that you knew of the gun prior to its production; in fact, that it was a part of the agreed enterprise.  As I raised during the plea hearing, I have some doubt as to whether the Storey principles require that burden and standard in a circumstance such as this.  However, I approach the question on the basis that they do. 

12"Mr Plummer pointed to the evidence of discussion and planning, the journey together to the offence and the inherent likelihood that you did know of the weapon.  He also relied upon some aspects of the CCTV footage.  I find that it is very likely.  However, ultimately the burden of proof and high standard conceded prevents me from coming to such a finding.  I find that there was insufficient evidence about the prior circumstances to do so.  The adverse finding requires at least some element of speculation. 

13"Accordingly, you are to be sentenced for armed robbery on the basis that, upon Dhal's production of his weapon, you continued in that knowledge to embrace and fulfil the plan to rob the store.  As I said during the plea, such late knowledge, given what you planned did and the circumstances thereby created for Shaocun Tang, it does not much reduce the criminality of your offence." 

14I was told that your co-offender, Barnabas Dhal, presently awaits committal in the Magistrates' Court.  He is your cousin and is aged in his early 20s. 

15Armed robbery is a serious offence, attracting a high maximum sentence.  Not atypical adverse features are the use of a sinister looking weapon and sudden frightening execution of the crime, here in an enclosed space.  Your targets were vulnerable people, placed in their situation by modestly paid employment.  It was also in a public space, committed there in daylight.  You have relevant prior convictions for using drugs heavily but this provides no mitigation.  The circumstances make relevant sentencing considerations of deterrence, your moral culpability, condemnation of your crime and proportionate  punishment of it.  Clearly, the only available sentence is a custodial one.  The question becomes, particularly because of your age, what form that must take. 

16You are 19 years of age.  You were 18 at the time of offending.  You presently await my sentence in remand custody.  You are the second eldest of seven children.  Your mother is  South Sudanese and your father, Ethiopian.  You were born in a Kenyan refugee camp.  You were exposed at a young age to violence and trauma there.  This included the death of another young child.  You experienced, over time, memories of and flashbacks to that. 

17You came to Australia with your mother and younger sister.  Others in the family came here three years later.  In Australia, the family has lived in Sydney and then suburban Melbourne.  You have become an Australian citizen.  Your family is supportive of you and you are able to return to the family home upon release from this sentence.

18You attended school until halfway through Year 11.  That was not successful.  There were behavioural problems and you suffer so-called borderline intellectual incapacity.  You experienced racism at school.  After school you have completed a TAFE course in plastering and more recently have started a course in carpentry.  You are a talented sportsman, at one point having the opportunity to play AFL football with the Western Bulldogs.  That fell away because of your increasingly antisocial behaviour. 

19Your criminal record states between December 2016, when you were 17, and October 2017, three prior court appearances.  Particularly, on 23 December 2016, you were sentenced to Youth Justice detention for offences including robbery, attempted robbery, theft and affray. 

20You began using cannabis at 16 and then ice amphetamine.  I accept that you were using that in the days leading to the offence and that your motive was to fund further use.  You state that you had not slept for two days. 

21The tendered report of psychologist, Gina Cidoni, states, on testing, a full scale IQ score of 75.  She states, "His IQ is borderline at 75, thought to be congenital in origins.  At this level, he is compromised in making sound judgements and problem solving.  Combined with the effects of drug use, there is disinhibition, irritability, destructive behaviour and disturbance of clear thinking.  There is difficulty with logical thinking and  connecting actions with consequences."

22Ms Cidoni also reports symptoms of depression, anxiety and post-traumatic stress related to your early life experience; but also the road accident death of a friend, witnessed by you when aged 15. 

23There was an episode of drug-induced psychosis at the time of your Youth Justice detention in 2016.  

24Your life has moved markedly downhill since mid-teenage in the context of drug use, antisocial peers and your cognitive and psychological difficulties. 

25You have fallen foul of some of these peers.  You were assaulted outside your home in September 2017, approximately three months prior to this offending.  You made a statement to police and have otherwise cooperated with them.  Some persons shave been charged and there is also ongoing investigation.  This, and a threat perhaps associated with it, has caused difficulty for you in custody and you have been placed over the approximate eight months of remand in protection.  This has meant long hours of lockdown. 

26After the assault, you left home.  In November 2017, your mother filed a missing person's report.  At the time of the offence you were listed as a missing person, staying in a squat style premises and using drugs on a daily basis. 

27As I have said, the relevant adverse sentencing considerations require a custodial sentence.  However, there are also relevant moderating factors.  In your case, they include the following.

28(1)   Your plea of guilty and remorse.

29(2)  I take into account your youth.  This makes rehabilitation an important consideration.  Further, your young age at the time of offending, 18, combined with your low intellectual capacity can legitimately be seen as to some extent affecting your judgment in deciding to commit the offence.  These have also made custody more difficult for you and will continue to do so, particularly in adult prison.

30(3)  I also take into account he hardship and particular difficulties of your personal history and circumstances.  These include the resultant mental health symptoms described in the expert evidence. 

31These matters are relevant to both the length of sentence and how it should be served. 

32On 13 July, I requested a report as to your suitability for Youth Justice detention.  That report by Youth Justice case manager, Vicky Wilkinson, is dated 6 August 2018.  There were further submissions arising out of that report on 9 August.  For example, there would be particular difficulties for you in youth detention because of the circumstances of your protection status.  It is an unusual situation.  I find that placement in youth detention would be counterproductive to rehabilitation of you, a matter of importance, given  your youth.  I refer to exchange between myself and counsel on 9 August.  I have decided that I should impose a sentence of imprisonment, combined with a community corrections order upon your release.  The length and conditions of that sentence should reflect both the adverse considerations and moderating factors I have earlier identified.  The sentence attempts to reflect the need to deter and rehabilitate you.  It is a different sentence to that of Scown.  Your youth, particularly, justifies that difference. 

33I refer to my earlier remarks on this.  I have requested and have now received a report by Community Corrections Officer Bridgette Landers as to your suitability for a community corrections order.  It is dated 15 August.  I have considered and intend to impose a curfew condition.  That should last for a period of three months after you release.  This was raised with counsel this morning. 

34Mr Landis's report states as to this:

"The courts intention to have Mr Magok assessed for place/area exclusion and curfew conditions has been noted.  In order to provide an informed recommendation to the court pertaining to a curfew condition, Corrections Victoria must first conduct intervention/family violence checks through Corrections Victoria Intelligence Unit, conduct a national criminal history check through Victoria Police, complete DHS checks and speak with Mr Magok's co-residents.  Further, in order to consider a place or area exclusion condition, the court must advise a clearly defined measure or bordered area.  If Your Honour is minded to impose these conditions and extended pre-sentence assessment is respectfully sought.  This will enable completion of the aforementioned enquiries to ensure any conditions imposed are appropriate in Mr Magok's current circumstances."

35I do not intend to impose a place/area exclusion condition. As I stated earlier, my proposed sentence is that of 12 months' imprisonment, together with a community corrections order of two years' duration. There will be additional conditions of (1) community work of 250 hours, with the capacity for rehabilitation program hours to be counted against that; (2) supervision; (3) mental health assessment and treatment; (4) drug assessment and treatment; (5) judicial monitoring, which I see as necessary in your case; (6) programs to reduce re-offending under s.48(D)(3f) of the Sentencing Act; (7) a three month curfew. The proposed hours are between 11 pm and 7 am.

36I shall adjourn formal sentencing to enable an extended assessment and report as requested on the condition of curfew.  I set that date for 18 September 2018.  You are remanded to that date.  On that date, I shall state, as I said earlier, what is the updated and appropriate period of pre-sentence detention.  I presently make it to be as at that date - well, I make to be 256 days today and looking forward, 288 days on 18 September. 

37I would listen to further submission as to the particular hours of the curfew but they seem, to me, the right period.  I would hope, well, any further comment I will keep until the sentencing herein.  Is there anything else I need to do?

38COUNSEL:  No, Your Honour.

39HIS HONOUR:  Now, Mrs Magok is in court, I presume.  If you wish to speak to your son, you can do that now but it must be short.  I think the protocols I remain in court.  Ms Smith, if you could supervise.

40MS SMITH:  Sorry, Your Honour, if I can just ‑ ‑ ‑

41HIS HONOUR:  If you wish to speak to him, you can go down the back and speak to him.

42MS SMITH:  If I can just apologise again, Your Honour?  I certainly did not mean any disrespect ‑ ‑ ‑

43HIS HONOUR:  No, no.

44MS SMITH:  ‑ ‑ ‑ it was simply to try and assist as I knew Your Honour was on leave.

45HIS HONOUR:  No, I understand that, it is - the catastrophe that has developed is not only of your doing.

46MS SMITH:  I am so sorry.

47HIS HONOUR:  It was an interesting development. 

48MS SMITH:  I thought I could assist but I understand what Your Honour was saying.

49HIS HONOUR:  Well no, what I am just saying, that these days electronic communications are so easy that sometimes people forget. 

50MS SMITH:  I know.  Of course, I did indicate to Your Honour before I knew about the email that I had spoken to her and I did indicate to my learned friend so ‑ ‑ ‑

51HIS HONOUR:  No, no.  Look, I am not criticising you, it is just another opportunity for me to complain ‑ ‑ ‑

52MS SMITH:  I am sorry, Your Honour.

53HIS HONOUR:  ‑ ‑ ‑ about what I see as an unfortunate development in our lives.

54MS SMITH:  If I can just be excused, Your Honour.

55HIS HONOUR:  Yes, well it needs to be short, unfortunately.

56MS SMITH:  Yes.

57HIS HONOUR:  All right.  Now, Mr Magok needs to be taken into custody now.  Are they finished?

58MS SMITH:  Yes.

59HIS HONOUR:  Yes, thank you.

60MS SMITH:  They have arranged a visit.

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